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San Francisco 5, Us 3, Sarah Jones 3, Wyco 2, Forsee 1, Wiener 1, Ann Marie 1, Ann Marie Rodgers 1, The Board 1, Cadex Appeals 1, Dick Murphy 1, Adam Smallman 1, Fong 1, Lastly 1, The City 1, Secondly 1, Glenn Canyon 1, Lafayette 1, America 1, Washington 1,
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  SFGTV    [untitled]  

    December 4, 2012
    4:00 - 4:30am PST  

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>> good afternoon, commissioners. ann marie rodgers. you heard the commission secretary call this item. this is a significant ordinance. we've heard a lot from the public and from you already. in response we've developed an additional me have owe that i'd like to hand out to you today, responds to some of your requests and some questions from the public. and i also have a packet which is community letters that we've received to date on this item. so, on in item, supervisor wiener would like to address you. i got a text from him that he is only available until 4 o'clock today, and i don't see him in the room right now. so, i'm going to begin my presentation. and if he walks in, let me know and i'll yield the floor to the supervisor. during the staff presentation i'd like to start with giving you contextual overview of the
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big moves of the ordinance. and then after my presentation senior environmental planner sarah jones will walk you through that new memo that the commission secretary is handing out. and then our chief environmental review officer bill lyka will conclude [inaudible]. the supervisor isn't here, and we'll let honorable supervisor wiener take the floor. * >> good afternoon, commissioners. today before you is an important legislation reforming our c-e-q-a appeal process in san francisco. and in fact, implementing a process where we really don't have one legislatively. this legislation has no impact whatsoever on anyone's substantive rights under
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c-e-q-a. in fact, we can't do that under state law as much as sometimes we'd like to amend state law, we can't. this provides for an improved more predictable and more timely process without affecting anyone's substantive c-e-q-a rights. commissioners, today i'm sure you would hear quite a bit of hyper boll i can rhetoric about how this legislation somehow undermines or guts * c-e-q-a and how the legislation will cause the sky to collapse into the earth. which is, of course, untrue. you will also hear hyperbole about how this legislation is some sort of nefarious developer scheme, which is also untrue, and ignores the fact that c-e-q-a appeals occur commonly for anything ranging from bike lanes to affordable housing projects to park
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projects, library projects, small family residential projects, and other projects that are anything but a developer scheme. indeed, larger developers have the resources and the savvy to be able to predict and to make their way through expensive and lengthy c-e-q-a processes, whereas an affordable housing provider, a family trying to put on a bedroom for an additional child, who are cash strapped, the transit agency may not have that same luxury. c-e-q-a, of course, exists to ensure proper analysis of environmental impacts. c-e-q-a does not exist as a tool to delay projects. however, san francisco's current procedures, unfortunately, can and sometimes are used in that way. this legislation helps to ensure c-e-q-a is used for its intended goal, to make sure that we have adequate environmental review of
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projects. this is part of a larger discussion that we're having in san francisco about an improved process for land use appeals. we make it very easy in san francisco for one person to delay a project for a significant amount of time. outside of c-e-q-a, of course, we've had recent examples of one persona peeling park permit at lafayette park, also at glenn canyon, delaying these important projects for months. we saw what happened with the north beach library. again, the intent of this legislation is not to reduce the public's ability to legitimately challenge a c-e-q-a document. this is an important part of the process, this kind of appeal, and it must be preserved. this legislation simply provides that if you're going to challenge a c-e-q-a determination, any member of the public may do so but must do so when the project's authorization is first considered, not at the 11th
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hour after you've perhaps lost all of your other challenges to the project. and under this legislation, public noticing will be enhanced so the public will be made better aware that an appealable determination has been made. planning staff will provide you with a detailed overview of the legislation, but i just want to note a few key changes. the first and possibly most significant change is changing the timing of an appeal of a categorical exemption. right now under our rules you can wait until the very last entitlement, discretionary entitlement is granted. and then that triggers your time to appeal. so, if you have a project that has three or four or five different entitlements and the last one might be a minor one that happens nine months down the road, you can wait until that last entitlement and then appeal. this legislation would require
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the appeal to occur within a time period after the first discretionary entitlement is granted. again, this does not in any way take away someone's right to challenge the c-e-q-a document. what it does is say that if you're going to appeal, if you have a concern about the c-e-q-a determination appeal, don't wait. another aspect of the legislation is a way of ensuring more predictability about situations where a project requires legislative action by the board of supervisors whether it's a zoning change or special use district. and where you also have, of course, c-e-q-a determination. right now when we have zoning that comes to the board for a project, there can be a separate c-e-q-a appeal fired. but that appeal can be filed
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late, it will disrupt the board's process. i'll give you an example of that. when the booker t. washington affordable youth housing project came to the board, we had to approve a special use district for that project. at the last minute, i think the day before or the day of our land use hearing, a c-e-q-a appeal was filed. we were required to take the entire matter off calendar and it delayed our consideration by two months. this legislation would provide that if the board is required to legislate for a project to happen, the board of supervisors becomes the c-e-q-a decision maker and the c-e-q-a item automatically comes to the board and is agendized along with the underlying zoning change or whatever the legislative change is and the board considers them, the two items together, and then the full board takes action. not deprive anyone the ability to comment [speaker not understood] c-e-q-a.
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in fact, it came to an automatic appeal. another change is that currently when a c-e-q-a appeal is filed, no action can be taken by anybody, by the board, by any commission. and that means there are plenty of times where actions need to be taken but don't have any physical impact or irreversible impact, but everything is frozen. this will provide when c-e-q-a appeal is filed, actions can continue to occur. for example, the hpc can continue to consider a landmarking or similar kinds of process, but no physical change can be made to the property. and, of course, the c-e-q-a determination is overturned, those decisions will be invalidated, but nothing irreversible will have happened. there are also improvements to noticing in the legislation and there are also changes around the board's rules. for example, requiring that there will always be a court
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reporter when the board holds c-e-q-a hearing. now it's optional. it's inconsistent. it gives the board more flexibility to adopt our own procedural rules around c-e-q-a. and then finally, the environmental review officer of the planning department will be able to make determinations around what is a historic resource that would require that noticing occur. and that will be a topic of discussion today as well. now, i know that this is complicated legislation and it's an important subject, but everyone's view on the matter is. and, so, we have been receiving significant amount of feedback. we have had various meetings so far with architectural heritage, with [speaker not understood], with sierra club and we'll continue to have those meetings and receive feedback. * what, not but at the last meeting i
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introduced substitute legislation that incorporated a number of the technical changes suggested by a number of the folks commenting on the legislation. we'll continue to have a very open and collaborative process around this to meet with people who want to meet and to receive feedback. and i look forward to the commission's feedback today. this is a process where we want to get people adam smallman perspective and produce the best product possible. * people's so, with that, finally, i wanted to address a few of the concerns that have been raised and i'm sure will be raised today and to briefly address them. one is that there's a claim that the legislation removes the public's ability to appeal. again, that is completely untrue. there has been a claim this legislation will have dramatic impacts on big megaprojects, whether it's america's cup or
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park more said kind of project. that is also untrue because this doesn't really impact how one appeals an e-i-r. that will basically remain exactly the way it is now. this legislation primarily impacts cadex appeals, and to a lesser extent negative declaration appeals. there's been a concern expressed about fair argument versus substantial evidence and the use of that language. this language, the language that we've used, is taken exactly from the state's c-e-q-a statute itself, and there's no intent in this legislation to change the standard of appeal. and then there was a concern expressed that the public would be forced to file a c-e-q-a appeal before a project proposed is fully articulated by having to file your appeal shortly after the first entitlement. but if a project changes and if its scope no longer falls
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within the bounds of the original c-e-q-a determination, of course, there would have to be a new c-e-q-a determination triggering new appeal rights. and then finally there's been a concern that the legislation would amend the definition of historic resource. that would require notice. the legislation does not make any changes to that standard. we've made some clarifying amendments to that effect. we'll continue to work with historic preservation community to address any concerns in that respect. so, commissioners, i would be honored to have your support and i look forward to your feedback. >> thank you. >> all right. that was a very thorough review by the supervisor. so, hopefully i think it's not repetitive, though.
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i'm going to talk a little bit more about the categories of things to help you understand it. first of all, there are changes here are really twofold. one is to require enhanced noticing forsee qua and, two, to ensure the robust c-e-q-a review happens and that the rights are maintained, but is within legislative time frames that everybody understands from the beginning. some of the provisions of this ordinance apply globally regardless of the type of environmental review and if the board is acting as decider. two, ensuring c-e-q-a appeals are still resolved by the board of supervisors, and three, codifying some existing procedures and requirements. so, let's look at these three global changes first. they apply to all types of environmental appeals. first is when the board is the decider. so, when the project comes to the board of supervisors
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anyway, such as there is an ordinance, maybe rezoning they need to approve. in these cases the c-e-q-a can be raised at the hearing that would be happening before the board anyway. so, it would be a single consolidated hearing. no appeal would even need to be filed. the board's hearing would address the c-e-q-a issues and the approval that was before the board. this would replace the separate c-e-q-a appeal process, but it would certify the board of supervisors to act affirmatively and make a c-e-q-a determination in order to approve the project. two, all matters would still be resolved by the board of supervisors. so, when the board is not required to approve the project, a separate c-e-q-a appeals process would be a potential avenue. appeals would need to occur following what would be called the first discretionary approval of a project. and there's been some questions about what this first approval would be. so, basically there are two types of first discretionary approvals.
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one where there is a hearing and one where there is not. for projects seeking entitlement in relying on a c-e-q-a exemption, the ordinance would designate the first approval as the first septment. there is itself appealable such as building permit. undercurrent conditions an appeal can occur at every discretionary action, even a minor permit such as a street tree permit that occurs way after the original building permit. and way after the original c-e-q-a review. under the proposal c-e-q-a notification would be added to the public notice for this first discretionary hearing. this notice would for the first time tell parties there is going to be a hearing and you have an opportunity to come to the hearing and you have an opportunity to file a c-e-q-a appeal. here's how you do it. now, if the action itself does not require notification and there is no public hearing, such as some of the city projects, then a notification on the c-e-q-a action and appeal time frame could still
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be posted by the approving department on our web page. if this posting occurs, then appeals would have to be filed within 20 days of the posting. if there was some sort of error where the posting didn't occur, we would go back to the longer 30-day period. the third kind of global change, codifying the existing procedures. there is concern about some things like i guess misunderstanding because it's not codified, but these are currently existing procedures people have been concerned about. one is the provision that would require a persona peeling an e-i-r to have already commented on the draft e-i-r and this is already codified. similarly, a provision that only the revised portions of an e-i-r could be reconsidered if a second appeal filed. this, too, is already codified and [speaker not understood]. lastly, there are some procedural rules such as the requirements for how you need to give things to the clerk of the board if you're appealing and when and what.
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these are all existing clerk of the board procedures. and they would be codified into law so we could look one place and understand the whole process. so, those are the three overall global changes. now let's look at some of the certain specific changes for the e-i-rs,v the negative declarations and exemption, the three types of c-e-q-a documents. first you heard the supervisor say they are already largely codified in chapter 31. so, beyond those general global changes there is not going to be a lot changing there. there is just one additional change and it is that the requirements for parcel level noticing where you need to notify everyone in the plan area and adjacent properties would be eliminated for those city planning processes that have large areas over five acres or greater. and this, again, is our current practice, but it would be codified. so, that's the big change for
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e-i-r. for neglect dick murphy decks, the position for appealing these would be unchanged except for three changes. first a negative declaration could not be appealed through the board unless it is first appealed here to this body. currently that is not the case. this change aims to have c-e-q-a issues addressed at the draft stage as is envisioned by the state c-e-q-a law. second, i described the mailing for these large city-run five acre and larger projects. that same would apply if they were covered by a negative declaration. there would be no need to do a mail notice to all those parties in the [speaker not understood]. third, this idea of a consistent 20-day deadline for filing appeals would also be established for negative declarations. that's the negative declarations. now let's look at exemptions. the ordinance does increase noticing for exemptions. i think it's interesting to note that state c-e-q-a law
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does not require noticing for exemptions. however, in san francisco, the approval of many currently exempt projects are noticed. this proposal would augment our existing noticing procedures by requiring the notice for exemptions. and as i explained earlier, the notes would explain that you have the right to appeal a hearing from the project. it would provide postings of approval actions and inform the public on exactly how and when to file an appeal. the process is now in place is less clear to the public as it relies on many things. we have to look at board of the clerk procedures. there is a city attorney opinion letter. and every individual determination for an appeal if appropriate, is it timely, has to be reviewed by the city attorney for review by determination. important to the hpc in particular, the proposed procedures would change nothing
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about how historic resources are evaluated under see qualitiv so, there is some confusion as you heard about that. there would be -- the only change relative to historic resources would be a small change to the special noticing that happens to those who are on our preservation mailing list. and this notice for historic resources was amended in the recent version just last week so it would address the concern and provide notice for any city adopted service. so, that's kind of the big overview. now our senior environmental planner sarah jones is going to go through the memo that we handed out today. and there copies on the table for the public. if anyone needs an extra one, they can see us. >> could i ask a quick question to staff? there's references i'm reading in here, and you just mentioned there had been amendments made to the legislation that we have had before us, but we have not received. is that correct? >> that is correct.
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i would go run copies right now. i'm sorry for that. >> that's all right. we don't need to do that. >> there's one more clarification on your presentation. >> i just wanted -- i'm not sure if i understood this correctly. two things. you said that if one wanted to speak at a later e-i-r hearing, they had to have addressed the d-e-i-r hearing to speak at the later hearing? >> at the appeal hearing, that's correct. >> all right. that was one thing i wasn't clear about. and the other -- on negative declarations, it says there's no appeal to the board unless it first is appealed to the planning commission. i thought it was the other way around. it would be they appeal just to the board. but it has to first go to the planning commission. they can't directly much to the board for appeal? >> yes, if you're an appellant,
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you can appeal to the planning commission and then a again appeal later to the board. or some people choose to skip that and just appeal directly to the board of supervisors. it's more consistent with c-e-q-a to have the earlier appeal before this body, which is the acting body for the negative declarations, because then it's still in the draft stage and it's addressed earlier. c-e-q-a prefers to address issues earlier. >> i agree, because everything else in the c-e-q-a process comes first to the planning commission. and then it's appealed to the board in some cases. so, okay, thank you. >> thank you. >> good afternoon, president fong and members of the commission. my name is sarah jones,. i'm from the environmental planning division of the planning department. what i am doing today is giving a brief overview of the materials that you received this afternoon. those include a cover memo, some case studies on projects
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that were appealed. there were also appeals filed since 2010, a list of time frames -- a list of time frames for appeals as well as the department's responses to the comments that we've received thus far on the legislation. * results these materials were prepared in response to requests for information from commissioners. so, i'm mainly going to focus on the cover memo. what we did in that cover memo was broke down the proportion of time that the appeal process takes relative to other portions of the environmental review process for each major type of environmental document. this turned out, actually, to be a very helpful exercise for us because it really highlighted that the most problematic aspect of the current situation is the lack of predictability and clarity with regard to negative declaration and categorical exemption appeals. so, first for e-i-rs.
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under the proposed legislation, that wouldn't change much. e-i-rs take a small amount of time compared to the preparation process. the time lines are specified now in chapter 31. for negative declarations, that's where it starts to get a little hairy. the amount of time can be small or large as a proportion of the overall environmental review time, depending on the circumstances of the project and how that approval process goes. currently it is unpredictable how the appeal process would work. because the approval of the project, which is the trigger for a c-e-q-a appeal at the board, may not occur until a long time after the completion of the c-e-q-a document. the negative declaration only becomes ripe for appeal at approval.
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one correction to the information in the memo. after the approval an appeal must be filed with the board within 20 days. as mentioned previously, negative declarations can be appealed to the board of supervisors even if they were not appealed to the planning commission. overall, the rules surrounding negative declaration appeals are highly unclear. included in your tiersv is a case study of an appeal of an affordable housing project that this commission reviewed at 31 55 scott street. under the proposed provisions, the same appeals could occur, but the process would be both shorter and more efficient * . in the case of this project, this could have enabled the project sponsor to take better advantage of state funding cycles. as it is, construction has not yet begun on this project as a result of missing some funding cycles. the next category of environmental documents is
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categorical exemptions. again, this is a very large range of time, both in term of how long the environmental process takes and how long the appeal process can take as a proportion of that. but the appeals can be a very large proportion of the overall time and in some cases basically the entirety of the time. appeals can be filed after the first approval action on a project which can be a long time. again, after the exemption was issued. however, they can be filed until the last approval is final on a categorical exemption which extends the time even more. again, rules for cad ex owe peels are unclear and opaque as it stand to the public now. under the legislation, the rules will be clear, notice of appeals opportunities will be a should ieder and the appeal would occur with the first project approval. a case study is 2835 broderick street.
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again, that one came to the commission on discretionary review. in the proposed legislation, the c-e-q-a appeal would occur at the first approval action on the project. in other words the building permit. [speaker not understood] would occur six months earlier than it did and could have better informed the procedure that played out at the board of permit appeals. just a final point to reiterate before i turn this over to bill wyco. the unpredictable and nature of the appeal process now is [speaker not understood]. it would not be curtail of appeal rights. it would provide for greater predictability and greater clarity. now i'll turn it over to bill, our environmental review officer. thank you. >> commissioners, thank you. it's bill wyco. i'm going to start kind of at kind of a general level because
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this discussion is going to probably mire in details. get in the big picture first and plunge into a detail or two that you're going to hear in comments, you've seen in comment letters. big picture, all that this ordinance -- all that the existing ordinance does and all the proposed ordinance does is fill gaps in state law. state law does not address -- state law was changed 10 years ago to allow an administrative appeal to the board -- to elected body if the elected body is the decision maker. we've had 10 years now of having no procedure in place. this is trying to establish a procedure. so, number one, it's addressing a gap in state law that did not establish procedures for such administrative appeals. secondly, it addresses a gap in state law specifically around exemptions regarding noticing. as ann marie stated, there is
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absolutely no requirement under state law for noticing exemptions. the noticing that we already have, either by ordinance or by practice goes way beyond anything that state law requires. what this does is aloe exceptionally try to address the fairness question in saying that since there is extensive noticing, it happens on many actions by the city, in particular extensive noticing by anything that this department does, that we want to maximize noticing through using existing noticing. in other words, if there is a notice that goes out regarding anything that involves a discretionary action that has c-e-q-a underlying it, that that notice would serve -- would tell people that there was an exception or whatever c-e-q-a action is taken and would serve notice that that process will be triggered by whatever the trigger is. in the case of negav

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